Bennett v. McCaffrey
| Docket Number: | 2005-IA-00277-SCT Linked Case(s): 2005-IA-00277-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 06-29-2006 Opinion Author: Graves, J. Holding: AFFIRMED AND REMANDED |
|
| Additional Case Information: |
Topic: Personal injury - Timeliness of interlocutory request - M.R.A.P. 5(a) - Service of process - Good cause - M.R.C.P. 4(h) - Excusable neglect - M.R.C.P. 6(b)(2) Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Diaz, Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Randolph, J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - PERSONAL INJURY |
|
| Trial Court: |
Date of Trial Judgment: 01-24-2005 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: The circuit court denied Bennett’s Motion to Dismiss pursuant to MRCP 4(h), 12(b)(4), and 12(b)(6). Case Number: 251-03-179 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Aaron B. Bennett |
H. WESLEY WILLIAMS, III |
||
| Appellee: | Rebecca McCaffrey | REBECCA G. TAYLOR |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Personal injury - Timeliness of interlocutory request - M.R.A.P. 5(a) - Service of process - Good cause - M.R.C.P. 4(h) - Excusable neglect - M.R.C.P. 6(b)(2) |
| Summary of the Facts: | A four vehicle automobile accident occurred on Highway 603 in Hancock County. The first two cars were driven by Daniel Tucker and Walter Madeley. Soon after Tucker and Madeley had collided, Aaron Bennett came upon the scene and ran into the two already wrecked vehicles. Thereafter, Rebecca McCaffrey came upon the scene and also collided with the other three vehicles in the highway. McCaffrey filed a complaint against Bennett, Tucker, Madeley, Phelps (owner of the car Daniel Tucker was driving), and her insurance company, USF&G. McCaffrey was only able to serve USF&G, her own insurance company, within the original 120 day time period. On April 29, 2003, the circuit court granted a 60 day extension for service of process. On June 24, 2003, McCaffrey issued a subpoena on the Commissioner of Insurance in an effort to serve Bennett’s insurer to obtain information on his whereabouts. On June 25, 2003, the Commissioner of Insurance forwarded the subpoena to Bennett’s insurer. On June 30, 2003, McCaffrey attempted to serve Bennett by publication. On July 6, 2003, the first extension granted by the circuit court expired. On October 6, 2003, the circuit court granted an additional extension of time to serve Bennett. On October 22, 2003, Bennett was personally served. On November 6, 2003, Bennett filed a motion to dismiss. The circuit court denied Bennett’s motion to dismiss. Bennett filed a Petition for Certification for Interlocutory Appeal which the circuit court denied. Bennett filed a Petition for Interlocutory Appeal with the Supreme Court. The Court granted the petition. |
| Summary of Opinion Analysis: | Issue 1: Timeliness of request McCaffrey argues that Bennett failed to timely seek certification for his interlocutory appeal from the circuit court within fourteen days from the circuit court’s denial of his motion to dismiss. Although the circuit court entered an order denying Bennett’s motion to dismiss on June 7, 2004, the court did not enter its order denying certification until January 24, 2005. Bennett filed his Petition for Interlocutory Appeal with the Supreme Court on February 7, 2005, exactly 14 days later. Therefore, Bennett’s petition is timely under M.R.A.P. 5(a) (as it existed in 2004). Issue 2: Service of process Bennett argues he was not timely served with a copy of the summons and complaint as required by M.R.C.P. 4(h). McCaffrey argues that Bennett was properly served by publication within the first sixty day time extension. Bennett counters by stating that publication under M.R.C.P. 4 is not appropriate in a personal injury action brought in circuit court. While Bennett is correct in his assertion that Rule 4 requires that the proceeding be in chancery court or authorized by statute, his assertion that the defendant be a nonresident of the State of Mississippi is incorrect. Furthermore, there is an obvious distinction between a total want of service of process and defective service of process. McCaffrey’s attempted service by publication can be deemed defective service of process and as such, does not warrant the dismissal of Bennett from this particular cause of action. After diligent inquiry and through her best efforts, McCaffrey could not locate Bennett to personally serve him. Also, once provided pertinent information as to Bennett’s whereabouts by her insurance company, McCaffrey sought to secure additional time to serve Bennett. Therefore, good cause existed for why process was not served within the time period allowed by Rule 4(h) and the initial extension provided by the circuit court. Issue 3: Excusable neglect Bennett argues that the second extension was granted in violation of M.R.C.P. 6(b)(2) because McCaffrey did not demonstrate any type of excusable neglect. Good cause for delay has been interpreted as excusable neglect or adequate proof that there was a need for the delay or other justification of the delay which would convince the courts to grant an extension in the service of the defendants. A conscious and intentional delay of service by the plaintiff will not constitute good cause for an extension. McCaffrey established good cause for the delay in serving Bennett. The facts which established good cause for delay have also established excusable neglect. Furthermore, McCaffrey held a good faith belief that she had properly served Bennett by publication during the first extension of time. McCaffrey’s good faith belief established excusable neglect. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
